Ringing up cash: ASCAP suing AT&T for ringtone “performance”

The EFF has found a mildly redacted version of a filing by ASCAP, the American …

If your cellphone has a musical ringtone, step back and appreciate it the next time a friend dials you—according to the American Society of Composers, Authors, and Publishers, you're listening to a performance. In the latest sign of just how confusing the music licensing system is, ASCAP is suing AT&T over the carrier's sale of musical ringtones, looking for a cut of the revenue—even though the carrier is already paying for the download rights to these tunes. In a recent filing unearthed by the Electronic Frontier Foundation, ASCAP says that download payments aren't enough because each ring constitutes a performance.

The brief came in response to a motion by AT&T to have the case dismissed. It was filed under seal on the 12th of June, but has only been made public after some of the figures, such as AT&T's ringtone revenue numbers, were redacted.

The document lays out a rough history of ASCAP's interactions with various ringtone providers. Many of them had apparently been paying performance licensing fees for years, and some continue to do so. A number, however, have apparently stopped paying in recent years, following a court's decision in a case involving AOL and the precise nature of downloaded music. AT&T apparently never bothered paying performance fees in the first place, but is now citing the download decision as part of its argument for summary dismissal.

ASCAP still firmly believes that the download decision was made in error (it says the same thing about the Cablevision DVR decision, which AT&T's lawyers also cited), but that shouldn't matter anyway: unlike those downloads, a ringtone is a performance. Despite the fact that shopping for ringtones seems to be quite similar to shopping for other music, ASCAP does cite a couple of ways in which there are differences, beyond the obvious (ie, that AT&T can trigger the playing of the track at will). AT&T actually has control over where the track gets stored on most phones, and it remains tied to the carrier—if you switch providers, you lose the track.

As such, ASCAP has concluded that "when a ringtone plays to signal an incoming call, it is obviously a performance." Even though AT&T can't control when those calls happen (or if the user has muted their hardware), the group argues that it's created a joint liability with its customers, and in no way deserves to have the case thrown out.

The EFF's Fred von Lohman, who analyzed the filing, argues that the brief ignores some well-defined areas of precedent and the legal code. In short, he concludes that, if a ringtone constitutes a public performance, then so does playing the car radio when the windows are down.

It seems unlikely that this filing will be well received by the courts. In addition to claiming that two of the relevant precedents were decided wrongly, it's filled with hyperbolic statements, such as where ASCAP claims, "AT&T has gone much further than Napster ever did."

Regardless, it highlights what has been a recurring problem with copyright law in the digital era: digital media, and the DRM that controls their function, blur the neat lines between a broadcast and physical media. Combine that ambiguity with the fact that groups like ASCAP have a mandate to get their members as much revenue as they can, and you have a recipe for lawsuits whenever someone tries to do something new with digital raw material.